A Brief Analysis of the State of New York’s Obligations

In my opinion as a historian, New York State, as a subordinate government to the federal government of the United States, has three basic obligations under United States law:

to implement the intent of federal United States treaties with the Haudenosaunee

to implement the intent of two federal United States treaties with Great Britain which directly affect the Haudenosaunee

to implement two United Nations covenants signed by the United States

The federal treaties with the Haudenosaunee by which New York State is obliged to the Haudenosaunee include:

The 1784 Treaty of Fort Stanwix

The 1789 Treaty of Fort Harmar

The 1794 Treaty of Canandaigua

In addition, there are two major international treaties signed by the United States by which the State of New York has obligations to the Haudenosaunee:

The 1794 Jay Treaty which provided for a tariff-free passage by Indians across the international border between Canada and the United States

The 1815 Treaty of Ghent between the United States and Great Britain which insures that the Haudenosaunee and other Indians will retain after 1815 all the rights they had prior to 1811

Finally, there are two major United Nations covenants signed by the United States, both effective since 1976, by which the State of New York has obligations to the Haudenosaunee, both of which bind the State of New York to “promote the realization of self-determination” of “all peoples.” These are:

The International Covenant on Civil and Political Rights, ratified in 1976

The International Covenant on Economic, Social and Cultural Rights, ratified in 1976

All of these obligations center around the 1794 Treaty of Canandaigua.

If New York State wishes to have any of these responsibilities altered, the State must do so through its sovereign, the United States. In turn, the United States must negotiate with the Haudenosaunee. Under the Treaty of Canandaigua of 1794, no unilateral action can be legally taken by either the United States or the State of New York. New York State may reply that Article VII of that treaty provides for a unilateral alteration of the treaty’s provisions by the United States government, quoting this section of Article VII:

until the legislature (or great council) of the United States shall make other equitable provision for the purpose.

A careful reading of the article, however, reveals that this phrase is not intended to apply to the entire treaty. Rather, the phrase only applies to the issues set forth in Article VII. If the phrase had been intended to permit an alteration of the entire treaty, it would have been a separate and concluding article. But paragraph one of Article VII is one long, complex sentence rather than a series of separate, independent statements. This long sentence states all those provisions which can be altered by an “equitable provision” by the United States. The following quote breaks down the phrases, which in the original are run-on. Note that absolutely no period marks any of the text until the end of the last line:

Lest the firm peace and friendship now established should be interrupted by the misconduct of individuals,

the United States and Six Nations agree,

that for injuries done by individuals on either side, no private revenge or retaliation shall take place;

but, instead thereof, complaint shall be made by the party injured, to the other: By the Six Nations or any of them, to the President of the United States, or the Superintendent by him appointed: and by the Superintendent, or other person appointed by the President, to the principal chiefs of the e Six Nations, or of the nation to which the offender belongs:

and such prudent measures shall then be pursued as shall be necessary to preserve our peace and friendship unbroken;

until the legislature (or great council) of the United States shall make other equitable provision for the purpose.

Clearly, the last phrase relates only to resolving an interruption of “peace and friendship.” The phrase also notes that any resolution by the United States to a disruption of peace and friendship must take place within two contexts:

the resolution must be “prudent”

the resolution must be “equitable”

Article VII clearly calls for a prudent and equitable resolution whenever an individual – termed an “offender” — from the United States disrupts the “peace and friendship” between the Haudenosaunee and the United States.

From a historian’s point of view, such a prudent and equitable resolution and intervention would include New York State action, on behalf of its sovereign the United States, against an individual “offender” who is of Haudenosaunee descent but who, for whatever reason, is no longer regarded by the Confederacy as a citizen of the Confederacy and who is, either de jure or de facto, regarded by the United States and the State of New York as a citizen of the United States.

New York State, as a subordinate to the United States, must assist the United States in implementing this provision for injuries done to the Confederacy by individuals outside the Confederacy and within the jurisdiction of the United States. Failure to do so abrogates the 1794 treaty and jeopardizes any land rights promised by the treaties.

Article VI provides compensation to the Haudenosaunee “in consideration of the peace and friendship established.” The United States and its subordinate the State of New York have regarded Article VI’s provision for $4,500 annually as the only financial obligation required by treaty. Furthermore, the United States and the State of New York often find it convenient to believe that any additional compensation “in consideration of the peace and friendship established” is voluntary and benevolent. A careful reading of the sentence structure of Article VI, however, notes that the article makes several assertions, most importantly:

“with a few to promote the future welfare of the Six Nations, and of their Indian friends”

A historian could argue that at a time land was selling for at least one dollar an acre, the amount of goods paid under Article VI in 1794 — $10,000 worth of goods once, and $4,500 worth of goods annually – constitutes fraud as fraud would be defined in United States law in 1794. But clearly the annuity, whatever its merits in 1794, is entirely fraudulent today because the amount clearly cannot maintain the treaty. Such an incredibly small amount certainly cannot “render the peace and friendship hereby established, strong and perpetual” nor can it “promote the future welfare of the Six Nations, and of their Indian friends”

Thus, New York State, as a subordinate to the United States, must assist the United States in implementing Article VI’s clear intent to promote a “strong and perpetual” peace and “to promote the future welfare of the Six Nations, and of their Indian friends.” In areas such as education, social welfare, and health where the United States has decided to place a considerable responsibility upon its subordinate states, New York State is required to implement United States policy so that such programs succeed. Failure to do so abrogates the 1794 treaty and jeopardizes any land rights promised by the treaties

In the Treaty of Canandaigua, the Haudenosaunee are regarded as sovereign. Article V, for example, notes that “the Six Nations, and each of them, will forever allow to the people of the United States a free passage through their lands.” This implies that without this provision, the Iroquois could have restricted and indeed, without this treaty provision, might have in the future restricted U.S. citizens. Thus the sovereign to sovereign negotiations called for in Article VII are thus logical and in keeping with the historical context of the treaty.

Any unilateral action which fails to uphold the intent of the Treaty of Canandaigua can be viewed by the Haudenosaunee, if they choose to do so, as a cancellation of the treaties, which would, as noted above, jeopardize any land rights promised by the treaties. The dilemma for both the United States and the State of New York was succinctly defined in an 1892 United States government report entitled The Six Nations:

The several reservations belong to them (Saint Regis differs somewhat from the others, and neither the state of New York nor the United States can legally break them up without the Indians’ consent, or through conditions analogous to those of war. They have always been recognized as nations….

The Saint Regis Indians [Akwesasne] are the successors of the ancient Mohawks….

at a grand council, held in 1888, the Saint Regis Indians were formally recognized as the successors of the Mohawks….

The alleged absurdity of the Six Nations of New York being a “nation within a nation” does not change the fact of nullify the sequence of actual history….

Accepting all that the most technical advocate of the Indians’ claim to prolonged independence can advance, a higher and equally consistent principle of international law supplies the wholesome remedy.

As contiguous nations must have political intercourse, and upon a basis of mutual benefit, so there must be, on the part of each, some representative authority to adjust conflicting issues between them….

CONCLUSION

New York State, as a subordinate to the United States, must assist the United States in implementing:

“prudent” actions against “offenders” who threaten the peace from outside the authority of the Confederacy, whether or not they are of Haudenosaunee descent

“equitable provision” for violations carried out by “offenders” who threaten the peace from outside the Confederacy, whether or not they are of Haudenosaunee descent

strong and perpetual financial and material support “to promote the future welfare of the Six Nations”

Such actions are sanctioned by the 1794 Treaty of Canandaigua. Such actions permit the United States and its subordinate government the State of New York to comply with those United Nations covenants to which the United States is a signatory.

“Articles concluded at Fort Stanwix” 1784; “Articles of a treaty made at Fort Harmar” 1789; and “A Treaty between the United States of America, and the Tribes of Indians called the Six Nations,” in Charles J. Kappler, ed., Indian Treaties 1778-1883 (reprint of 1904 U.S. Government edition entitled Indian Affairs: Laws and Treaties, Volume 2 Treaties; New York: Interland Publishing, 1972), 5-6, 23-25, and 34-37.

Treaty of Peace and Amity Between His Majesty and the United States of America, Concluded at Ghent,” 1815, in Charles W. Eliot, ed., American Historical Documents, 1000-1904 (New York: P.F. Collier & Son and The Harvard Classics, 1910), p. 263.

Steven Paul McSloy, “Back to the Future: Native American Sovereignty in the 21st Century” New York University Review of Law & Social Change, Volume XX, No. 2, p. 289

Robert W. Venables, “Iroquois Environments and ‘We the People of the United States’” in Christopher Vecsey and Robert W. Venables, eds., American Indian Environments: Ecological Issues in Native American History (Syracuse, New York: Syracuse University Press, 1980), 107-108; cf. 81-127; Laurence M. Hauptman, Formulating American Indian Policy in New York State, 197-1986 (Albany, New York: State University of New York, 1988), 8 and 19; and Robert B. Porter, “The Jurisdictional Relationship Between the Iroquois and New York State: An Analysis of 25 U.S.C. 232.233” in Harvard Journal on Legislation Volume 27 (1990), 497-503.

U.S. Department of Commerce, Bureau of the Census, Extra Census Bulletin. Indians. The Six Nations of New York, by Thomas Donaldson [with Henry B. Carrington and Timothy W. Jackson] with a new introduction by Robert W. Venables (Reprint of the 1892 U.S. Government Printing Office edition; Ithaca, New York: Cornell University Press, 1995), p. 3.

cf. John J. McCusker and Russell R. Menard, The Economy of British America, 1607-1789 (Chapel Hill, North Carolina: University of North Carolina Press and the Institute of Early American History and Culture, 1985), pp. 68-69, pp. 68-69 at footnotes 17 and 18, and pp. 204-205.

John J. McCusker, How Much is that in Real Money? A Historical Price Index for Use a Deflator of Money Values in the Economy of the United States (Worcester, Massachusetts: American Antiquarian Society, 1992), p. 333 and passim.

In this historian’s opinion, no human society endows individuals with rights and then permits that individual to act autonomously, alienated and separate from the nation either of their birth or their adoption.

The Treaty of Canandaigua specifically notes how the Confederacy, and not the United States, will determine who and who is not under the protection of the Confederacy.

The Haudenosaunee – the Six Nations Confederacy of the Iroquois – have defined who was and who was not a Haudenosaunee through laws and customs which existed both before and after contact with non-Indians, and is one aspect of Haudenosaunee sovereignty.

The treaties and laws upon which treaty rights for the Haudenosaunee are asserted define rights of the Confederacy, not the rights of alienated, isolated individuals.

Under the Treaty of Canandaigua, an individual who was born a Haudenosaunee has treaty rights only so long as that person is recognized by the Confederacy as a member of the Confederacy.

When a person who is born a Haudenosaunee becomes alienated and/or banished from responsibility to the Confederacy, that person’s status and legal rights can be defined solely by the United States. Such a person cannot claim the protection of the Confederacy because such an assertion can only be made by an individual who chooses to define status solely on grounds of racial or ethnic identity, rather than national citizenship. This racial/ethnic claim is sure to fail because the United States would define that individual as existing apart from their responsibilities within an Indian nation. Such a person has become an ethnic American citizen. By their individual action, such persons have alienated themselves from the protection of the Confederacy and are literally Indians without an Indian country.

As a historian, I believe that history indicates that either an Iroquois individual is a Haudenosaunee and responsible to Haudenosaunee government, OR that Iroquois individual is an American or Canadian citizen of Haudenosaunee descent. Ethnic American citizens who are of Iroquois descent have no more rights than other American citizens. No individual, of any race, has historically been a sovereign unto themselves. Thus Article IV of the 1794 Treaty of Canandaigua states (my emphasis and bracketed notes]:

The United States having thus described and acknowledged what lands belong to the Oneidas, Onondagas, Cayugas and Senekas, and engaged never to claim the same, nor to disturb them [meaning the Six Nations as a whole Confederacy], or any [one] of the Six Nations, or their Indian friends residing thereon and united with them [meaning adopted Indian nations such as the Tuscaroras, Tutelos, etc.], in the free use and enjoyment thereof….

From a historian’s point of view, the Treaty of Canandaigua means that the U.S. government cannot interfere with the internal affairs of the Confederacy government of the Haudenosaunee or any of the governments of the nations still in the Confederacy. But it is also clear that the Haudenosaunee have the right to govern their own citizens.